M. RAMACHANDRA REDDY Vs. STATE OF BANK HYDERABAD

JUDGEMENT

(1.) This appeal by the 1st defendant is preferred against the order of the Subordinate Judge, Khammam in I.A. No. 131 of 1964 in O.S. 90 of 1963, refusing to set aside the ex parte decree passed on 10-4-1964.

(2.) The respondent-Bank filed a suit for the recovery of Rs. 13,559-03 from the defendants. The 1st defendant is the managing partner of the firm Rama-chandra Reddy and Co. The suit was posted for trial to 10-4-1964, on which date the defendants were not present and their advocate reported no instructions. Hence, an ex parte decree was passed by the lower court on 10-4-1964. On 24-4-1964, the managing partner filed an application to set aside the ex parte decree passed on 10-4-64 on the ground that he was suffering from typhoid and there was sufficient cause for his absence on the date of the trial: On 10-6-64, the appellant filed a medical certificate from the Doctor to the effect that he was suffering from chronic malaria from 15th February to 26th April, 1964. The trial Court dismissed the application of the appellant to set aside the ex parte decree, holding that there was a discrepancy between the affidavit filed by the appellant and the medical certificate filed by him. The medical certificate reveals that the appellant was suffering from malaria, whereas the affidavit discloses that he was suffering from typhoid. Hence the appeal.

(3.) Mr. D. Srirama Sastri, the learned counsel for the appellant, urged that the appellant was in fact suffering from fever on the date of the trial and it is an admitted fact that on 10-4-64 he was not in a position to attend the court on account of his illness, though there is a discrepancy with regard to the nature of the fever whether it was typhoid or malaira, that there was sufficient cause for his absence and that the court should have exercised its discretion in favour of his client and set aside the ex parte decree. In any event, it is stated that the order should have been set aside on payment of some reasonable costs. The counsel for the respondent contended contra and this appeal is opposed.